Judge grants Sheriff’s Meadow partial injunction

Benjamin Ramsey and Nisa Counter received a tent permit from the Chilmark board of health. The structure they built is approximately 15 feet by 20 feet and resembles an unfinished cabin. — Photo by Nelson Sigelman

Massachusetts Land Court Associate Justice Alexander H. Sands Friday granted the Sheriff’s Meadow Foundation (SMF) a preliminary injunction that directs an Island couple to refrain from any further construction activity on property they and the private, nonprofit conservation organization claim to own in the Quenames section of Chilmark.

In his five-page ruling dated August 19, Judge Sands said that husband and wife Benjamin Ramsey and Nisa Counter could continue to use the property in a limited manner pending a determination by the court of legal ownership.

“Defendants are hereby restrained and enjoined from any further cutting, clearing, burning, construction activity, or testing on the disputed parcel. Defendants may use the existing tent for temporary recreational purposes, and may park the existing trailers on a temporary basis on the disputed parcel,” he wrote. “Finally, both plaintiff and defendants shall refrain from arguing the case in the press.”

In a footnote to his reference to the press, Judge Sands wrote, “It was represented to this court by both parties that arguments by the parties in two publications on Martha’s Vineyard (The Martha’s Vineyard Times and the Vineyard Gazette) have inflamed the issues in this case.”

The dispute between Martha’s Vineyard’s largest private nonprofit conservation organization and a couple with many Island connections has been fueled by online comments and Facebook postings, most highly critical of Sheriff’s Meadow Foundation and property owners abutting the land in dispute.

Asked for comment on the injunction, Sheriff’s Meadow executive director Adam Moore offered a prepared statement: “Sheriff’s Meadow Foundation has no further comment on the pending litigation, but wishes to point out that a fundamental tenet of our mission is to protect the lands which have been entrusted to us. As a nonprofit conservation organization, we simply do not have the right to relinquish donated conservation land to private parties. We believe that the Massachusetts Land Court is the appropriate forum to fairly and expeditiously resolve a title disagreement.”

Mr. Ramsey did not return messages from The Times left on his cell phone Monday and Tuesday.

Not a tent

The creation of a road and the construction of a building described as a tent precipitated SMF’s request for an injunction. Although Judge Sands allowed the use of the “tent,” Chilmark building inspector and zoning officer Lenny Jason has ordered Mr. Ramsey to remove it.

Chilmark board of health regulations governing the issuance of camping permits, such as the one obtained by Ms. Counter and Mr. Ramsey, require that the tent must be made of “canvas, or equivalent, material,” and there must be toilet facilities. The board of health does issue tent permits that allow people to live seasonally in existing sheds, Mr. Jason said.

“They built a shed,” Mr. Jason said in a telephone conversation Tuesday, noting that a shed meets the requirements of the board of health, but the construction of one requires a building permit. “And that’s what they can’t have, because that’s an accessory structure, not a primary structure.”

The construction of the shed violated town zoning regulations. “Ben knows that,” Mr. Jason said. “He said he was going to build a wooden tent — nice try.”

Mr. Jason said this week that he told Mr. Ramsey he must take the shed down, and Mr. Ramsey replied that he did not want any trouble.

No middle ground

On Thursday, August 18, the two sides squared off in Land Court. Diane Tillotson of the Boston law firm of Hemenway and Barnes represented Sheriff’s Meadow Foundation.

Mr. Ramsey and Ms. Counter represented themselves. They arrived armed with an affidavit from Tisbury lawyer Geohan E. Coogan and one from Chilmark resident Carl E. Flanders.

In questioning Thursday, Judge Sands at first sought to avoid ruling on the SMF request for a restraining order. In a telephone conversation with The Times Friday, Ms. Tillotson said that Judge Sands prefers to broker a compromise before issuing a restraining order, and that he attempted to discover under what condition Sheriff’s Meadow might allow the couple to continue to use the property while the title question is resolved.

Ms. Tillotson said, “He was clearly hoping we could come to some agreement so he wouldn’t have to make a ruling.”

Ms. Tillotson said Sheriff’s Meadow took the position that allowing further use of the existing wood-framed structure would be akin to allowing anyone to use property they do not own. “We argued that he should not allow any use because there is really no basis for their title claim,” she said.

Orchard question

In his affidavit, dated August 16, in support of the couple, Mr. Coogan called into question SMF’s reference to an orchard as a valid basis for its title claim. “In my opinion Sheriff’s Meadow has not definitively proven their ownership in the property,” he wrote.

Mr. Flanders also signed an affidavit, dated August 16, in which he too questioned evidence of an orchard and described a family history of wood lot use with the permission of Herbert Hancock.

Ms. Counter and Mr. Ramsey bought the property from Mr. Hancock’s widow, Billie Hancock. They have supported their claim by pointing to the property taxes Mr. Hancock, and later Ms. Hancock, paid on the property and a chain of ownership underpinned by what is known as adverse possession, through Mr. Hancock’s use of the property as a wood lot.

Ms. Tillotson said adverse possession is based on active and regular use of a property for a period of 20 years. She said in the case of wood lots, there would need to be fencing or some other use that would put somebody on notice that there is a claim to the property.

“Just paying taxes on a wood lot off in the middle of nowhere doesn’t get you adverse possession,” she said.

Title chain

Title research is at the heart of Land Court’s process. Regardless of the preliminary injunction, the judge’s final decision on ownership of the land and its boundaries will rest on the chain of title.

The foundation argues that the land in question is part of the 10.5-acre Freeman Hancock wood lot off Blue Barque Road in Chilmark that C. Russell Walton donated in 1973 to SMF.

Mr. Ramsey says the land, a little more than one acre of which he wants to build on, belonged to his great-uncle and former Chilmark selectman Herbert Hancock and abuts the conservation property.

A 63-page complaint, dated August 9 and filed in Land Court on behalf of SMF by Edgartown lawyers Ronald H. Rappaport and Michael A. Goldsmith, describes a chain of title that originates with a deed dated November 23, 1805, from Zacchariah Mayhew to Jonathan Mayhew.

The complaint includes a copy of a deed recorded on August 5, 2010, in which Ben Ramsey and Nisa Counter bought a parcel of land from Billie Hancock, the widow of Mr. Hancock, for $9,000.

In an earlier telephone conversation, Mr. Ramsey, 30, a general contractor, said that lawyer Eric Peters conducted a title search and drew up the deed used for the August 2010 purchase. Mr. Ramsey said that Mr. Peters indicated there were problems with the title.

Mr. Peters did not return a message left on his answering machine last week or one left this week seeking comment on the title work that supports Mr. Ramsey’s claim.

Mr. Ramsey said he also consulted with Edgartown lawyer Marcia Cini, in part because of her support of affordable housing. Ms. Cini told The Times this week that she accompanied the couple to a meeting in June with Sheriff’s Meadow Foundation executive director Adam Moore and Mr. McCarron, in an effort to see if there might be an arrangement agreeable to both parties.

“We didn’t get anywhere,” she said.

In a telephone conversation Monday, Mr. Coogan said Mr. Ramsey and Ms. Counter asked him to review the title work prepared by attorney Robert M. McCarron on behalf of Sheriff’s Meadow Foundation. I gave them a supporting affidavit acting as a title attorney to hopefully raise a question in the court’s mind,” Mr. Coogan said. “I’m not a litigator, so I am not representing them.”

Mr. Coogan said his affidavit speaks only to the issue of SMF ownership and not to the couple’s title claim. “I reviewed the title that Rob McCarron did on behalf of Sheriff’s Meadow, and in my opinion, from my review of that, I don’t believe that Sheriff’s Meadow Foundation has proved their ownership,” he said.

Mr. Coogan said that Eric Peters was able to produce a deed from his research but did not provide the couple with a certified title, because of the murkiness of the title history.

No determination

The Friday ruling was a follow-up to a temporary restraining order issued August 9, granted by the court at Sheriff’s Meadow Foundation’s request.

In his ruling, Judge Sands said that before issuing a request for a preliminary injunction, the court must determine the degree to which the plaintiff would suffer irreparable harm if no injunction were granted and the plaintiff’s and defendant’s likelihood of success on the merits.

Judge Sands said, “This court is unable to make a determination of likelihood of success of either party at the present time. The court does, however, note that defendants appear to have a color of title argument … and their title appears to have some credibility with both the Chilmark assessors office and the Chilmark board of health.”

Color of title is a legal term that reflects the existence of a title or deed regardless of whether such a document is underpinned by legal ownership.

In their Facebook arguments in support of their ownership of the land and in sharp criticism of the position taken by SMF, the couple has characterized the issue as “youth lots versus tax breaks.”

The lot at the center of the dispute is not a youth lot. The zoning board of appeals must first issue a special permit to allow a youth lot applicant to build a dwelling on an unbuildable parcel, according to town bylaws and only after receiving planning board approval.

The town has no youth lot or homesite lot application on file for Ben Ramsey.